Commonwealth v. Nuckles , 266 Va. 519 ( 2003 )

Present: All the Justices
COMMONWEALTH OF VIRGINIA
v. Record No. 022776 OPINION BY JUSTICE CYNTHIA D. KINSER
October 31, 2003
RICHARD WAYNE NUCKLES
FROM THE COURT OF APPEALS OF VIRGINIA
The Commonwealth of Virginia challenges the judgment
of the Court of Appeals of Virginia reversing the trial
court’s conviction of Richard Wayne Nuckles (“Nuckles”) for
grand larceny. The Court of Appeals held that the
Commonwealth failed to prove that Breeden Mechanical, Inc.
(“Breeden”), was a corporation, as alleged in the
indictment. Nuckles v. Commonwealth, No. 2570-01-4 (Va.
Ct. App. Nov. 5, 2002). Because we conclude that proof of
Breeden’s corporate status was not necessary to identify
Breeden as the victim of the larceny or to establish an
element of the offense, and that the Commonwealth proved
that Breeden owned the stolen property, we will reverse the
judgment of the Court of Appeals and reinstate the
defendant’s conviction.
MATERIAL FACTS AND PROCEEDINGS
The indictment charging Nuckles with grand larceny
alleged that
[o]n or about November 8, 1998, in the County of
Warren, Richard Wayne Nuckles did unlawfully and
feloniously take, steal, and carry away the goods and
chattels of Breeden Mechanical Inc., in violation of
Section 18.2-95 of the Code of Virginia, 1950, as
amended.
Nuckles was convicted in the Circuit Court of Warren County
of the charged offense and sentenced to four years of
incarceration, with one year suspended.
The evidence at trial showed that Nuckles worked for
Breeden for approximately a month. Breeden performed
plumbing services and hired Nuckles to work as a plumbing
foreman. Breeden provided Nuckles with a “company truck,”
equipped with all the supplies and tools needed to work on
plumbing jobs, as Breeden does for anyone it hires as a
plumbing foreman. The truck, with “Breeden Mechanical all
over both sides,” belonged to Breeden and was “given” to
Nuckles “to use on the job and drive back and forwards from
home.” “Breeden Mechanical own[ed] the tools,” as well as
the truck, according to the testimony of Nuckles’
supervisor.
Nuckles advised his supervisor on a Friday that he had
not been at work all week because of his mother’s illness.
Although Nuckles indicated that he would be at work on the
next Monday, he never returned to work at Breeden. Soon
thereafter, several Breeden employees, at the direction of
Nuckles’ supervisor, went to Nuckles’ residence to retrieve
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Breeden’s truck. When the truck was recovered, the
“Breeden Mechanical” sign on the side of the truck could no
longer be seen because it had “duct tape over it.” All the
supplies and tools were missing from the truck. Nuckles’
supervisor testified that Nuckles did not have any
authority to dispose of the tools.
Nuckles appealed his conviction to the Court of
Appeals, contending that the evidence was not sufficient to
prove that the owner of the stolen goods was a corporate
entity as alleged in the indictment. The Court of Appeals
agreed and reversed the trial court’s judgment. The Court
of Appeals found that the term “Inc.” could not be
dismissed as “surplusage” under Code § 19.2-226(9) “because
it described, limited, and qualified that which was
necessary to charge.” Nuckles, slip op. at 4. In
conclusion, the Court of Appeals held that the Commonwealth
failed “to prove beyond a reasonable doubt that appellant
stole property belonging to Breeden Mechanical Inc.” Id.
The Commonwealth appeals from the judgment of the Court of
Appeals.
ANALYSIS
The issue in this case is whether the Commonwealth had
to prove the corporate status of the victim in this
prosecution for larceny. The Commonwealth contends that
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the Court of Appeals erred in holding that it was required
to establish that Breeden was actually incorporated at the
time of the offense. The Commonwealth argues that, once it
proved that Breeden’s property was stolen, proof of
Breeden’s corporate status was irrelevant.
In response, Nuckles asserts that the burden was on
the Commonwealth to prove that corporate property was
stolen and that it failed to do so. Because the entity
alleged in the indictment was “Breeden Mechanical Inc.,”
Nuckles argues that evidence of Breeden’s corporate status
was required to sustain his conviction for larceny. In
Nuckles’ words, “the Commonwealth was well aware that the
‘victim’ in this case [w]as a corporation as evidenced by
the indictment and simply tried to take a shortcut by
having the superintendent testify to ownership.”
In Gardner v. Commonwealth, 262 Va. 18, 25, 546 S.E.2d
686, 690 (2001), this Court vacated a defendant’s
conviction and dismissed an indictment because a “fatal
variance” existed between the indictment and the evidence.
The defendant in that case was charged with obtaining
United States currency by false pretenses in violation of
Code § 18.2-178. Id. at 19, 546 S.E.2d at 686. Because
the indictment alleged that the property belonged to George
Gardner, the issue centered on whether the owner of the
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currency was the bank account depositor, Gardner, or the
bank from which the money was obtained. Id. at 19-20, 546
S.E.2d at 687. We held that “when the Commonwealth alleged
in the indictment that the money obtained by the defendant
was the property of George Gardner but the evidence showed
the money was the property of the bank, it proved a
different offense, resulting in a fatal variance.” Id. at
25, 546 S.E.2d at 690.
In an earlier analogous case, we held that a fatal
variance existed between the allegation in an indictment
charging a defendant with shooting into the residence of
Edna Harper and the evidence showing that the defendant
actually shot into the residence of Alberta Riddick.
Etheridge v. Commonwealth, 210 Va. 328, 330, 171 S.E.2d
190, 191-92 (1969). We stated that, while it was necessary
for the Commonwealth to allege in the indictment that the
defendant shot into an occupied dwelling house, the
additional allegation that the dwelling house was that of
Edna Harper “described, limited, and qualified that which
was necessary to be alleged, and the added language [could
not], therefore, be treated as surplusage.” Id., 171
S.E.2d at 192; cf. Alston v. Commonwealth, 32 Va. App. 661,
666, 529 S.E.2d 851, 854 (2000) (holding that, in an
indictment for maliciously burning a dwelling house, an
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allegation regarding ownership of the house was immaterial
to the offense).
Our holding in both Gardner and Etheridge relied on
the following principle:
If the unnecessary word or words inserted in the
indictment describe, limit or qualify the words which
it was necessary to insert therein, then they are
descriptive of the offense charged in the indictment
and cannot be rejected as surplusage. The offense as
charged must be proved.
Mitchell v. Commonwealth, 141 Va. 541, 560, 127 S.E. 368,
374 (1925). As noted by the Commonwealth on brief, the
unnecessary language found in the indictment in Mitchell,
that the defendant made “a false and fraudulent entry in
the ledger account of the accused with the bank,” described
the manner in which the defendant committed the crime. Id.
at 553, 127 S.E. at 372. Thus, we held that, since “the
Commonwealth elected to restrict the prosecution to a
‘false and fraudulent’ entry,” it was “bound to sustain the
allegation by proof.” Id. at 560, 127 S.E. at 374.
Similarly, the words at issue in Gardner and Etheridge were
not surplusage because they were descriptive of the offense
charged, namely the identity of the victim, but the
evidence pointed to a different victim, thus creating a
fatal variance.
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Here, we agree with the observation of the Court of
Appeals that the “term ‘Inc.’ has legal meaning and
significance.” Nuckles, slip op. at 4. However, the
significance of the term relates solely to the legal status
of the victim and not to the identity of the victim or the
manner in which the crime was committed as was the
situation in Gardner and Etheridge, and in Mitchell,
respectively. Proof that Breeden was incorporated at the
time of the offense was not necessary to identify Breeden
as the victim of this larceny, nor was Breeden’s corporate
status an element of the offense. Inclusion of the term
“Inc.” in Breeden’s name merely reflected the requirement
found in Code § 13.1-630 that a corporate name shall
include one of several listed words or abbreviations, the
term “Inc.” being one of the options.
Furthermore, the evidence at trial established the
identity of the victim in this case. Nuckles’ supervisor
testified that Breeden owned the truck and the tools that
had been supplied to Nuckles but were not returned by him.
The identification of Breeden as the owner of the stolen
property was not limited or qualified by its corporate
status. Thus, we hold that the term “Inc.” was surplusage
in this case. There was no fatal variance between the
indictment and the proof at trial.
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For these reasons, we will reverse the judgment of the
Court of Appeals and reinstate the defendant’s conviction.
Reversed and final judgment.
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